Child Sex Abuse: Statute of Limitations

Victoria

Victoria was the first state to enact changes to time limitation laws relating to survivors of child sexual abuse. In February 2015, the Limitation of Actions Amendment (Child Abuse) Act 2015 was enacted which states that time limitation laws do not apply to injuries from sexual abuse, physical abuse or psychological abuse of a minor. The Victorian Attorney-General at the time, Martin Pakula, said the following when introducing the laws:

"The trauma of child abuse can prevent victims from seeking immediate redress for the suffering they have experienced, so our laws need to account for this – not penalise people for it … This is about giving victims greater access to justice, allowing their suffering to be rightfully acknowledged and holding those to blame to account for the harm they've caused."

Other key legislation changes:

• Effective from July 2017:

  • The “onus of proof” for child sexual abuse claims was reversed and now lies on organisations such as churches, schools and government bodies to prove they took reasonable steps to prevent abuse from occurring.

  • Family members of deceased abuse survivors are able to seek civil damages.

• Effective from September 2019, abuse survivors who had previously signed deeds of release, are now able to take legal action if the previous settlement was unjust and unreasonable.

New South Wales

In New South Wales, legislation was enacted in March 2016 to remove the statute of limitations on civil claims for:

• child sexual abuse

• serious physical abuse; and

• any other abuse perpetrated in connection with sexual or serious physical abuse.

The change has been referred to as part of the NSW Government's response to the Royal Commission.The NSW State Attorney General at the time, Gabrielle Upton, was vocal in her support for removing time limits as a barrier that existed for victims of childhood sexual abuse:

"There should be no use-by date for justice for survivors of child abuse.”Western Australia"

In April 2018, the Western Australian Government lifted statute of limitation laws that applied to survivors of child sexual abuse. The legislation:

• opens up the possibility for survivors to apply for past judgments and settlements to be overturned.

• makes it easier for survivors who previously faced difficulties in identifying a proper defendant to sue.

• stipulates that any judgement or settlement may be satisfied out of the assets held by an institution (this change was a significant step forward for survivors as in other states, institutions have been able to use the ‘Ellis defence’ to avoid their legal responsibilities and protect their assets from being used for a judgment or settlement).

Unfortunately, the legislation still significantly limits the ability for survivors to make a claim as the Western Australian Government has only removed the statute of limitations for claims of childhood sexual abuse; while all other states have also removed time limits relating to other forms of abuse.It has been well recognised by the Royal Commission that physical and psychological abuse often go hand-in-hand with childhood sexual abuse and can have similarly devastating impacts upon survivors throughout their lives. With this in mind, it is disappointing that the Western Australian Government has not legislated to improve the rights of survivors of childhood physical and associated psychological abuse.

Queensland

In November 2018, the Queensland Government amended their statute of limitations legislation to come in line with the other states. This included:

• extending the definition of child abuse to include both physical and sexual abuse

• allow survivors to make an application to set aside previous deeds of release.

Northern Territory

In June 2017, the Northern Territory enacted legislation removing the statute of limitations for survivors of child sexual abuse, serious physical abuse and psychological abuse arising from sexual abuse or serious physical abuse.

Tasmania

In 2017, time limitations for child sexual abuse or serious physical abuse claims were removed. This also includes psychological abuse that arises from the sexual abuse and serious physical abuse.

ACT

In August 2016, the ACT Government removed the statute of limitations for claims relating to child sexual abuse. This legislation was amended in May 2017 to remove time limits for all compensation claims relating to abuse.There was another key reform in August 2018, when an amendment to the Civil Law (Wrongs) Act 2002 was passed to ensure survivors can take civil action against institutions regardless of the legal structure of the institution. This ended an institution’s ability to use the ‘Ellis defence’ to protect their assets and avoid their legal responsibilities.

South Australia

In September 2018, South Australia became one of the last states to enact legislation to remove time limits for abuse claims. Originally, the legislation was only going to remove the time limit for survivors of sexual abuse, however this was amended to remove time limits for all forms of sexual, physical and mental abuse before being enacted.